Kidwell v. State

RICHARD WAYNE KIDWELL v. STATE OF MARYLAND

No. 443

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2020

May 5, 2021

Circuit Court for Worcester County

Case No.: 23-K-15-000030

UNREPORTED

Graeff, Ripken, Raker, Irma S. (Senior Judge, Specially Assigned), JJ.

PER CURIAM

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

In 2015, following a bench trial in the Circuit Court for Worcester County, the court found Richard Wayne Kidwell, appellant, guilty of five counts of sexual abuse of a minor, three counts of second-degree rape, five counts of third-degree sexual offense, and one count of attempted third-degree sexual offense. On the five counts of sexual abuse of a minor, the court sentenced appellant to four concurrent twenty-five year terms of imprisonment, plus a consecutive fully suspended twenty-five year term. The court merged the remaining counts for sentencing.

On appeal, appellant contends that, because each count charging sexual abuse of a minor covered the same date range, his separate sentences for all five counts are illegal. The State agrees, and so do we. Appellant also contends that his sentences violate his right to be free from cruel and unusual punishment. In light of our holding on appellant's first contention, we need not reach his second. We explain.

BACKGROUND

Because appellant's contentions on appeal relate to the legality of his sentence, we need not, and do not, explicate the facts of the offense in significant detail. It is sufficient to say that the court convicted appellant of various sexual and abusive offenses against a minor child. The indictment, as amended before trial, charged him for offenses that, despite being grouped into five groups, were all alleged to have occurred between the same date range, i.e., between December 1, 2011, and December 1, 2014. The following table reflects the charges and dispositions in appellant's case:

 Count# Offense Verdict Sentence  1  Continuing course of conduct against achild  Nolleprosequi            Sexual Abuse of a Minor Guilty 25 years  3  Second-Degree Rape  Not Guilty   4  Third-Degree Sexual Offense  Guilty  Merged with 21  Sexual Abuse of a Minor Guilty 25 years concurrent  6  Second-Degree Rape  Guilty  Merged with 5  7  Third-Degree Sexual Offense  Guilty  Merged with 5           Sexual Abuse of a Minor Guilty 25 years concurrent  9  Second-Degree Rape  Guilty  Merged with 8  10  Third-Degree Sexual Offense  Guilty  Merged with 8           Sexual Abuse of a Minor Guilty 25 years concurrent  12  Second-Degree Rape  Guilty  Merged with 11  13  Third-Degree Sexual Offense  Guilty  Merged with 11           Sexual Abuse of a Minor Guilty 25 years allsuspendedconsecutive  15  Third-Degree Sexual Offense  Guilty  Merged with 14  16  Attempted Third-Degree Sexual Offense  Guilty  Merged with 14 

DISCUSSION

I.

As noted earlier, appellant contends that his five separate sentences for sexual abuse of a minor are illegal because they all were alleged to have occurred during the same date range. When his pro se Brief of Appellant is liberally construed, appellant's real complaint appears to be that he was punished more than once for the same offense.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Maryland's common law protect against multiple punishments for the same offense. United States v. Halper, 490 U.S. 435, 440 (1989); North Carolina v. Pearce, 395 U.S. 711, 717 (1969); Randall Book Corp. v. State, 316 Md. 315, 323 (1989); Brown v. State, 311 Md. 426, 431 (1988).

Whether a particular course of conduct constitutes one violation, or more than one violation, of a single statutory offense depends on the appropriate "unit of prosecution" of that offense. Brown v. State, 311 Md. 426, 431-32 (1988). As the Supreme Court stated in Brown v. Ohio, 432 U.S. 161, 169 (1977), "[t]he Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units."

Appellant was charged with five counts of violating section 3-602(b) of the Criminal Law Article, titled "Sexual Abuse of a Minor," which, as relevant here, prohibits "a household member or a family member" from causing sexual abuse to a minor. As Judge Moylan observed in Warren v. State, 226 Md. App. 596 (2016):

In analyzing double jeopardy scenarios, an umbrella crime such as Sexual Child Abuse, pursuant to § 3-602, poses especially perplexing problems, because an umbrella crime may appear in ever changing shapes and sizes. It is an accordion. It may be pressed together so tightly that at times it embraces a single constituent crime. It may actually be compressed even more tightly, embracing only instances of sexually abusive behavior that are not actually criminal. The accordion of Sexual Child Abuse, on the other hand, may at times be opened up so expansively as to embrace dozens, nay hundreds, of constituent criminal acts, charged or uncharged. Even if embracing a hundred constituent criminal acts, however, the umbrella crime of Sexual Child Abuse itself remains a single and indivisible crime. It does not fragment with the multiplication of its supporting evidence.

Id. at 615-16.

The charging document in Warren, charged Warren with child sexual abuse in four separate counts of the charging document covering the same date range. This Court explained that:

The Sexual Abuse of a Minor charge ... could not be multiplied by four. It would have been an improper multiplication of guilt for Sexual Child Abuse that would presume to increase the maximum penalty of 25 years for such an offense into an illegal sentence of 100 years. In taking the single indivisible crime of Sexual Child Abuse and fragmenting it into four distinct offenses, the State was attempting to divide the indivisible.

Id. at 610.

Thus, in the present case, the five counts purporting to charge five separate counts of sexual abuse of a minor actually charged appellant with the same offense in more than one count. Such a charging document is multiplicative and not permitted....